The European Court of Human Rights decided today that Turkish courts should not have ordered Erbil Tuşalp to pay damages for criticising the Prime Minister.

In today’s Chamber judgment in the case Tuşalp v. Turkey (application no. 32131/08), which is not final, the European Court of Human Rights held, unanimously, that there had been:

A violation of Article 10 (freedom of expression) of the European Convention on Human Rights

The case concerned the complaint by a journalist of having been ordered to pay damages for defamation for having published two articles criticising the Turkish Prime Minister Recep Tayyip Erdoğan.

Principal facts

The applicant, Erbil Tuşalp, is a Turkish national who was born in 1945 and lives in İzmir. He is a journalist-columnist and author of a number of books. In December 2005 and May 2006 respectively, Mr Tuşalp published two articles in the daily newspaper Birgün, which were critical of Prime Minister Recep Tayyip Erdoğan.

The first article, entitled “Stability”, stated, among other things, that “the Prime Minister and his men are continuing to be stable in creating their absurdities”, that “the day he says there are no convictions under Article 301 of the Turkish Criminal Code two journalists are convicted under it” and that the Prime Minister was “lying about matters from national income to inflation to the budget.”

The second article, entitled “Get well soon”, alleged, in particular, that the Prime Minister responded “to criticisms with swearing”. The article also stated that the Prime Minister had “become such a nervous wreck … that he dismissed a question like the erection of the ‘Pontic Genocide Memorial’ in Thessaloniki” and it concluded that he was “suffering from a psychopathic aggressive illness.”

The Prime Minister brought civil proceedings for compensation against Mr Tuşalp and his publishing company in respect of both articles. In both sets of proceedings, Tuşalp maintained in particular that the aim of the respective article had not been to insult the Prime Minister, but to criticise him. He also submitted interviews given by the Prime Minister and articles from other newspaper columnists to support his claim that the articles related to statements made by the Prime Minister about stability in Turkey and its positive effects, and to incidents which had shown that the Prime Minister had been tense in the preceding months. In September and December 2006, respectively, the Ankara Civil Court of First Instance ordered Mr Tuşalp and the publishing company to pay compensation to the Prime Minister in the amount of a total of 10,000 Turkish liras, holding that the remarks made in the articles went beyond the limits of acceptable criticism.

The Court of Cassation refused to examine Tuşalp’s requests for a rectification of the decisions since the value of the cases did not reach the threshold required for rectification proceedings.

Decision of the Court

Article 10

The Court considered that the final judgments given in the compensation cases brought by the Prime Minister of Turkey for protection of his personal rights had constituted an interference with Tuşalp’s right to freedom of expression. That interference was prescribed by Turkish law and it had pursued the legitimate aim of protecting the reputation and rights of others for the purpose of Article 10.

As regards the question of whether the interference had been necessary in a democratic society, the Court noted that the articles had concerned Tuşalp’s comments on current events and issues such as the allegedly illegal conduct of high-ranking politicians and the Prime Minister’s alleged aggressive response to a number of events.

There was no doubt that those were important matters in a democratic society of which the public had a legitimate interest in being informed and which fell within the scope of political debate.

The plaintiff in the two sets of compensation proceedings was the Prime Minister, thus a very high-ranking politician. The Court underlined that the limits of acceptable criticism were wider for a politician than for a private individual. He would therefore have been obliged to display a greater degree of tolerance. Even assuming, as the Turkish courts had done, that the language used in the articles was provocative and certain expressions could be classified as offensive, they were mostly value judgments based on particular facts or events, which had already been known to the general public, as some of the quotes compiled by Mr Tuşalp in the domestic proceedings demonstrated.

The Turkish courts did not appear to have attempted to distinguish the statements of facts made in the articles from value judgments, nor did they appear to have examined whether the articles had been published in good faith.

It was true that Tuşalp had used a satirical style to convey his strong criticism. In that context, the Court underlined that the protection of Article 10 was applicable not only to information or ideas that were favourably received but also to those which offended, shocked or disturbed. Consequently, the Court could not find that the strong remarks highlighted by the Turkish courts could be construed as a gratuitous personal attack against the Prime Minister. There was moreover nothing in the case file to suggest that the articles had had any effect on Mr Erdoğan’s political career or his professional or private life.

In that light, the Court found that the Turkish courts had failed to establish convincingly any pressing social need for putting the Prime Minister’s personality rights above Tuşalp’s rights and the general interest in promoting the freedom of the press where issues of public interest were concerned. The judgments against Tuşalp had therefore been disproportionate to the legitimate aim pursued.

The amount of compensation he had been ordered to pay together with the publishing company was significant, and such sums could deter others from criticising public officials and limit the free flow of information and ideas. There had accordingly been a violation of Article 10.

Article 41

Under Article 41 (just satisfaction) of the Convention, the Court held that Turkey was to pay Tuşalp 5,000 euros (EUR) in respect of non-pecuniary damage.